INTELLECTUAL PROPERTY PRESENTATION
KABUYE KENNETH
121-053011-24272
CRIMINAL LIABILITY ON INFRINGEMENT OF COPYRIGHT
Copyright infringement is the use of works protected by copyright law without permission for a usage where such
permission is required. It includes unauthorized use, reproduction, distribution, or display of copyrighted material
which violates exclusive rights of the copyright holder. An action for copyright infringement to be instituted, a
certificate of registration needs to be obtained before the suit.
In the case Henkel KG v Holdfast [2006] NZSC 102, it was stated that the copyright owner must prove that the
copyrighted work was copied which is usually shown by evidence that the accused had access to the copyrighted
work and that the work of the accused is substantially similar in appearance to the copyrighted work. Therefore, this
implies that infringement on copyright happens when the produced work has been already produced by another.
Section 46 of the Copyright and Neighboring Rights Act 2006 (CNRA) provides for scenarios that may give rise
to an infringement of copyright. It states that “Infringement of copyright or neighboring right occurs where without
a valid transfer, license, assignment or other authorization…” this section emphasizes that if one gets an official
right to reproduce the already produced work, that doesn’t amount to infringement.
Criminal liability refers to the legal responsibility of individuals or organizations for committing a crime resulting in
punishment or penalties. The Act (CNRA) creates criminal offences and criminal liability for copyright
infringement. Section 47(1) of the CNRA provides that “A person who, without the authorization of or license from
the rights owner or his\her agent_ (a) publishes, distributes or reproduces the work, (b) performs the work in public,
(c) broadcasts the work, (d) communicates the work to the public, or (e) imports any work and uses it in a manner
which, were it work made in Uganda, would constitute an infringement of copyright; commits an offence and is
liable on conviction, to a fine not exceeding 100 hundred currency points or imprisonment not exceeding 4 years or
both.”
The above provision is in line with Article 61 of the TRIPS (Trade Related Intellectual Property Rights) agreement
that provides that “Members shall provide for criminal procedures and penalties to be applied at least in cases of
willful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include
imprisonment and\or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied
for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure,
forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of
which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be
applied in other cases of infringement of intellectual property rights, in particular where they are committed
willfully and on a commercial scale.
Therefore, the TRIPS Agreement under the above provision obliges its member states to set legal procedures to
criminalize those who infringe on the copyrights of others.
Similarly, under section 48 of the CNRA a person who infringes a neighboring right also commits an offence. It
stipulates that; (a) a person who infringes a neighboring right of another person under this Act commits an offence
and is liable on conviction to a fine not exceeding 100 hundred currency points or imprisonment not exceeding 4
years or both.
Criminal liability on infringement of copyright by corporate bodies.
Here the liability on infringement of the copyright is on all the directors of the corporate or company. Also the
secretary to that corporate body is also liable for the crimes of infringement. Therefore, it is the directors and the
company secretary that are liable for such crimes.
Section 49(1) stipulates that “where an offence is committed by a body of persons_ (a) in the case of a body
corporate, every director and the secretary of the body shall be deemed to have committed the offence.
Criminal liability on infringements of copyright by partnerships
In partnership, all partners are liable for infringement. Section 49(b) provides and states that “in the case of a
partnership or other body not being a body corporate, every partner shall deem to have committed the offence”
This also works for persons or entities that doesn’t amount to a corporate body such as clubs etc., those members or
individuals are held liable and responsible for the infringement on copyright.
Section 50(1) states that a person convicted of an offence under this Act for which no other punishment is provided
is liable to a fine not exceeding 50 currency points or imprisonment not exceeding 1 year or both.
Note;
The spirit behind section 49 0f the CNRA is derived from TRIPS Agreement that is Article 61 and the Constitution
of the Republic of Uganda that is article 26 which seeks to guarantee to the right to property including intangible
property of which intellectual property rights are an example. Article 26(1) of the constitution stipulates that “every
person has a right to own property either individually or in association with others”
Defenses for infringement on copyright.
Fair use; if the copied work was used to help create something new rather than being merely copied verbatim into
another work. It is more likely to be fair use. Section 15 of the CNRA
The amount and substantiality of the portion taken; the less material borrowed, the more likely that the copying
will be excused as fair use. Even taking a small portion of work however, will not be a fair use if the portion taken is
the “heart” of the work.
